A future where money, not law, determines outcomes

Family Law|August 18th 2016

Now we all know that financial budgets are finite, particularly in these cash-strapped times. However, you would hope that the welfare of a child is considered to be more important than saving money. Wouldn’t you?

Over the last couple of years I have regularly reported here how the demands placed upon the Children and Family Court Advisory and Support Service (‘Cafcass’) have increased, particularly in respect to the number of applications by local authorities for children to be taken into care, but also in relation to private law children cases not involving local authorities. I have often commented on the strains that this must be putting the system under. Something is likely to break, unless of course further resources are made available.

Well, now we have been told by the Chief Executive of Cafcass Anthony Douglas that the service is working with the government to look at possible measures to stem demand. The news was contained in a statement from Douglas in the service’s annual report, in which he says:

“I have been in discussion with the President of the Family Division, senior judges, the Legal Aid Agency and other delivery partners about the potential for bringing cash limited budgeting principles into the family justice system, by defining a fixed budget for Cafcass services in each local court area and a pricing schedule (for example, for a section 7 report; for a contact monitoring order). This could be a significant development for the years ahead and we will continue to pursue realistic policy options for this.”

Yes, that would certainly be ‘significant’.

A little background here, for the benefit of those who don’t understand the role of Cafcass in private cases involving children, where the parents are in dispute over arrangements for their offspring. In most contested cases the Court will order Cafcass to prepare a section 7 report, more commonly known as a ‘welfare report’. Cafcass will then investigate the case and file the report, usually making a recommendation as to what order or orders the Court should make. Now, courts have long been aware of the resources that have to go into the preparation of a report, so they don’t order a report unless they consider it absolutely necessary, to help establish what is best for the welfare of the child.

The future envisioned by Douglas is one in which family courts will have to consider not just what is best for the welfare of the child, but also whether there is enough money left in the local pot to pay for a report. What happens when the pot runs out?

Presumably Douglas foresees some sort of ‘emergency funding’ being made available to ensure that reports can be ordered when it is clear that the welfare of a child could be seriously adversely affected without a report, but who determines that? And doesn’t that run a cart and horses through the whole idea?

In any event, if a court that is considering ordering a report looks at its local budget and sees that it is reaching its limit, that will obviously make it more likely that it will not order a report. But, as I said above, courts are already only ordering reports when they think it absolutely necessary. Is the bar for what is ‘absolutely necessary’ to be set higher when money is short? Remember, a court making a decision upon the welfare of a child without the benefit of a welfare report is going to be hugely less well informed, and therefore far more likely to make a bad decision.

As for public law cases, Douglas has said that Cafcass is working with the Ministry of Justice, the Department for Education and the Association of Directors of Children’s Services to try to tackle the issue of high demand. He has stated that Cafcass is keen to do more pre-proceedings work with local authorities, so that children who do not need to be subject to care proceedings can be identified and “stepped-down” from care applications. He has also indicated that more children could be placed with their families, rather than removed from them. Of course, these courses of action could be good ideas, but it seems they may be dictated more by cost considerations, rather than child welfare.

Welcome to the future, where whether you will have contact with your children or whether a child is removed from abusive parents will depend upon how much money is left in the kitty.

Image by Thomas Barker via Flickr under a Creative Commons licence

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comments(5)

  1. Amber Hartman says:

    John,

    It is important to know that Anthony does believe the CP system is too risk adverse and he supports FDAC, PAUSE so families can be kept together wherever possible. I believe the Director of ACDS also has the same view so much of what I say may also relate to him.

    My opinion is that support should be given to families as too many children are wrongly removed. For example, how many parents will have been wrongly accused of abusing their children when the child has an undiagnosed or misunderstood medical condition such as Ehlers Danlos Syndome?

    Cafcass pilot with two (I believe) local authorities in pre proceedings reduced the number of children going into care. This can only be a good thing. Recognising families need support and helping them can only be positive reform. Local authorities stressing the family through the court system and causing trauma which may never have existed happens far too often.

    FDAC saved money in the long term, as would PAUSE as many parents having gone through the project had no further removals. Maybe Mr Douglas (and Mr Hill) want more innovative ways to be discovered (as well as FDAC and PAUSE being rolled out nationally) so that there will be fewer cases going through court.

    I believe Mr Douglas is being ethical (in looking at keeping families together wherever possible) and innovative (in saving money) at the same time which should only be commended.

    Amber

  2. Stuart says:

    John
    I know you have been retired from practice for some time, but you do appear to be seriously out of touch with the reality of the Family Court system in England, and how CAFCASS copes with and manages private law cases.
    Parents, like myself, who have to deal with CAFCASS, have for years had to contend with the(in) competence of their practitioners and whether or not they have the skills, attitude, training and ability to properly examine highly contested situations- which by definition are the ones which reach the Courts. My experience, (and I believe this is typical of most parents reading your blog), is that they do not. Everone involved in these situations knows that if they cannot pay to pursue their case in private law they can say good bye to their children. That is now, not the future. And that has nothing to do with the abolition of legal aid – those of us accused of rape, DV, threats to kill and kidnap etc never received legal aid anyway. Though our ex partners bizarrely did- egged on by your ex colleagues on their gravy train. Bless them.
    If CAFCASS have to join the market place, perhaps their practitioners will have to start to make accurate, considered and researched assessments that stand up to detailed scrutiny, without having to fight their frequently incompetent, biased and flimsy work – by having to resort to use lawyers?
    Sounds like to me a possible win for children and alienated parents? Sorry if your profession loses out again! I would rather pay a competent CAFCASS worker who cares and is able to make a proper assessment than a lawyer determined to retire on a bloated pension pot with no conscience.
    Private Family Law in England is an absolute shambles. It doesn’t work for children. It doesn’t work for parents. It only works for the very many unscrupulous members of your profession. Why don’t you use the energy of your blog to campaign for change? For children?
    Sadly – I know you won’t.

  3. Andy says:

    So the question is, what price or a value on a child,how much is it..According to your information and of course the accuracy of such that the more money you hav the type of outcome you will get….

    Yes I agree totally with the prior comments made..in such financial,damaging and draining course of action the looser is the children or child and what of the child like parents…In such cases the action of the courts will support the mother who is bitter and very twisted in such actions as to have full support of any parental guided agency and what of the father. He is treated as scum….
    High time the so called experts woke up and instead of receiving,legal and advisory capacity advice and overrated pay salary with additional costs did what they do for a correct decision..
    It’s so easy for a solicitor to turn around after you have been stripped of all parental rights and here comes the best bit..The solicitor or advisor says..We did our best…it’s all well and good because they go home and open another bottle of expensive wine and knowing tomorrow is another pay check from some one else they can leach off.

    As we can now see the so called agencies who report ,document and support court reports with advice should be held accountable for the inaccuracies and down right lies that has been written..

    In short, when will the British courts wake up and action equality for all not just for one side….
    Still as my colleague has commented nothing will happen because it’s to easy at present…

  4. Spinner says:

    John we get it, you are upset about the cuts to legal aid. Can you write about something else now as its getting very repetitive, almost weekly it the same article with a marginally different slant.

  5. spinner says:

    John what are your thoughts on Legal Aid being given to “lawyers” such as Phil Shiner of Public Interest Lawyers to harass and persecute men and women who had volunteered to potentially pay the ultimate sacrifice and provide the security that you currently enjoy.

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